A Lot Weaker Than They Look

As I said before, let’s not forget the massive stakes for Republicans in the next Supreme Court nominee. Many Republicans would genuinely prefer to maintain control of the Supreme Court than elect the next President. Republican control of the Court, a de facto reality for more than a generation with total control going back a decade, is that big a deal. Yet there’s a lot more weakness to Senate Republicans’ embrace of the “three nos” yesterday than I think most observers, certainly most Beltway observers, realize. Not just no confirmation, but no vote, no hearings, not even courtesy meetings. They even took this bizarre step of having all the members of the Senate Judiciary sign a letter pledging absolutely not to hold any hearings of any Obama nominee. The signatures appear to be in ink not blood. But who knows?

As I said, I don’t need to be convinced that Republicans will do anything to block President Obama from choosing Scalia’s successor. But I think they protest way, way too much about the brittleness of their position and the potential electoral fallout. The emphaticness of the “three nos” isn’t really necessary to convince anyone at this point. It’s to make the point so ferociously, totally, almost maniacally that they can actually end the debate now. But I doubt they actually can. And I think the fallout for Republican senators up for reelection in swing states this year is potentially far greater than people realize.

A colleague told me that he can’t believe someone as savvy as Mitch McConnell can’t read the electoral tea leaves. And perhaps he can. He probably can. But that only tells me what’s behind the ferocity of the “three nos.” They need to end the debate now to avoid the political fallout. It is entirely within Mitch McConnell’s power to simply never hold a vote, which is all that really matters for the Court. But managing the politics is another matter. And that is why it is critical to end the debate now.

If the Democrats are smart about this, this is a far more potent electoral cudgel in Senate elections than most folks realize. Start with the given that this battle is life and death for partisan Democrats and partisan Republicans. But those people seldom determine statewide elections, certainly not in swing states. Lightly affiliated Democrats and Republicans and actual swing voters are highly attuned to charges about political dysfunction, refusal to do your job and so forth.

So let’s start with this. Republican senators won’t meet with the nominee. We get it. But I’m pretty sure Democratic senators will meet with him or her and make quite a show of it. I’m also fairly sure the White House will keep trying to set up meetings with Republican Senators and make a show of the on-going refusals. Senate challengers will press it in their campaigns too. And I have little doubt the White House will be sure to arrange meetings with the couple Republican senators who’ve so far bucked the unified front.

As I noted earlier, the necessity of the “three nos” is tied to a very evident slippery slope Republicans are desperately trying to avoid. If you meet with a nominee and then get asked how it went, what do you say? “It was a good meeting, a very qualified individual. But we definitely won’t hold a confirmation hearing?” That doesn’t make sense. The whole thing doesn’t make a lot of sense. But that’s okay if you put the whole story to bed in February or March. There’s a big difference between just announcing it and getting past it and having a death of a thousand messaging cuts over the course of an election year. As the people managing the opposition on the Republican side have made clear, they need to do everything they can to avoid any discussion which focuses on the qualifications of the nominee – an amazingly cynical statement but accurate in terms of strategy.

As I said, partisans on both sides are immovable on this. And loosely affiliated or swing voters, by definition, aren’t terribly knowledgeable or concerned about the differences over judicial philosophy which undergird this fight. But these voters are extremely focused on gridlock, doing your job or not doing your job, people who refuse to do their job or just do what makes sense for seemingly arbitrary reasons. What is more, there’s no ideological commitment required in this case. The issue is readily understandable. This is your job. Do your job. Especially if you’re asking to be hired again!

Again, this is exactly what tends to drive the votes of people who aren’t tightly aligned with one party or ideology. Their biggest, consistent frustration – especially this year – is the inability of government to get things done. In other words, it’s not that the Court or its decisions on particular cases is so important to these people. But the battle captures an aspect of governmental dysfunction, the arbitrariness of the breakdown of governance that matters a great deal to precisely these people.

I fully expect you’ll see Democrats standing up DoYourJob.com type websites across the swath of states from the Atlantic to the Mississippi Valley and using various methods to continue pressing those half a dozen senators on whether they’ll meet with the nominee, whether they’ll vote and why if they will do those things they won’t or can’t convince their colleagues to do the same. I strongly suspect that those endangered senators can’t hold up under six months of that onslaught, not without sustaining a measure of reputational damage which may not be vast but is more than enough to lose them their seats.

The only real challenge I see here for the White House is that the person President Obama likely wants is one of those brainiac, hyper-credentialed judicial minds whose made his or her life in the law schools and the federal bench. Those tend not to be the sort of people who are temperamentally cut out for this kind of political drama. To the extent these folks are political – and they definitely are, just in a different way – they may not see it as in their longterm interests to become such a politically charged figure. Still, I’m sure Obama can find someone.

The smarter Democrats must see this. And I suspect the Republicans do too. That’s why they are doing everything they possibly can to shut this process down before it starts. That’s the key. It is entirely within their power not to hold a vote. The public spectacle of nine months of stonewalling, the political fallout and the narrative it creates is not. That’s what’s behind the almost maniacal blood oath drama of the “three nos”. This is not close to over unless the Democrats agree to make it over. And I doubt they will.